JUDGMENT : S.MANIKUMAR, J. Appellants [State of Kerala, The Kerala State Fishermen Debt Relief Commission and the State Bank of India] are the respondents 3 to 5 in the writ petition. Appellants have preferred this writ appeal challenging the judgment dated 5.3.2013 in W.P. (C)No.30691/2010 by which, writ court dismissed the writ petition filed by first respondent/Kairali Purusha Swasraya Samithi holding that Kerala State Fishermen Debt Relief Commission has no power to deal with debts availed from institutional creditors. 2. Writ petitioner/Kairali Purusha Swasraya Samithi claimed to be a self help group formed by 15 fishermen, a list of which is produced as Ext.P1 in the writ petition. It is evident from the materials available on record that for the purpose of acquisition of the inboard unit of country fishing boat with engine and other utensils, having a total investment of Rs.20 lakhs, the said group availed of a loan of Rs.10 lakhs from the respondent bank/State Bank of India. 3. Default was committed in repayment and therefore, the account was classified as NPA. Thereafter, SARFAESI proceedings were initiated and finally, the Bank obtained an order from the learned Chief Judicial Magistrate Court, Alappuzha under Section 14 of the said Act. Thereafter, an Advocate Commissioner appointed by that Court issued Ext.P5 notice dated 2.6.2010 requiring the writ petitioner to hand over possession of the secured asset to him. 4. Simultaneously, the debt was advised for revenue recovery and accordingly, Ext.P8 notice under Section 7 of the Revenue Recovery Act was issued. It is challenging Exts.P5 notice dated 2.6.2010 and P8 notice under Section 7 of the Revenue Recovery Act, writ petition was filed. 5. Reliefs sought for in the writ petition are as follows: “(i) Issue a writ of certiorari or any other appropriate writ, order or calling for the original of Exhibit P4 and similar notice issued to the petitioner's members mentioned in Ext.P1 list and quashing the same. (ii) Issue any appropriate writ of mandamus or any other writ, order or direction commanding the 1st and 2nd respondents not to take any step or proceedings pursuant to Exhibit P4 and similar notices issued to the petitioner's members mentioned in Ext.P1 list for the recovery of the amount due from them till the 4th respondent takes a decision on its application for debt waiver or till expiry of the period of moratorium, which ever is later. (iii) Issue a writ of certiorari or any other appropriate writ, order or calling for the original of Exhibit P8 and similar notice issued to the petitioner's members mentioned in Ext.P1 list and quashing the same. (iv) Issue any appropriate writ of mandamus or any other writ, order or direction commanding the 3rd respondent not to take any step or proceedings under the Kerala Revenue Recovery Act against the petitioner's members mentioned in Ext.P1 list or their assets for the recovery of the amount due from them till the 4th respondent takes a decision on its application for debt waiver or till expiry of the period of moratorium, which ever is later.” 6. Ext.P5 notice dated 2nd June 2010, issued by learned Advocate Commissioner appointed by the Court reads thus: NOTICE ISSUED BY ADVOCATE COMMISSIONER SRI.VARGHESE MATHEW UNDER SECTION 14 OF THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002 As per the order dated .05.2010 I, Varghese Mathew have been appointed by the Hon'ble Chief Judicial Magistrate, Alapuzha as the Commissioner for taking possession of the property mentioned hereunder and handing it over to the petitioner bank. Hence in the above circumstances, this notice is issued. I, hereby give notice to you that I will be executing the terms of the Commission Warrant issued by the Hon'ble Chief Judicial Magistrate in pursuant to the provisions under Section 14 of the Securitisation and Reconstruction of Financial assets and Enforcement of Security Interest Act, 2002 on the 9th day of June, 2010 and propose to take actual physical possession of the property mentioned hereunder upon which the borrower has created Security interest in favour of the Secured Creditor. The borrower is hereby directed to make a peaceful handing over of possession to the undersigned on the 9th day of June, 2010. Otherwise subject to intimation to Hon'ble Chief Judicial Magistrate the terms of this order will be executed on that day or any other subsequent day. This notice is issued to the borrower only by way of information for compliance and will not create any night on them. Dated this the 2nd day of June, 2010. VARGHESE MATHEW Advocate Commissioner PETITION SCHEDULE PROPERTY District Alapuzha Sub District Alapuzha Taluk Ambalapuzha Village Alapuzha West Sy. No. 499/9/2 Extent 5.3 Cents DESCRIPTION All that part and parcel of land having an extent of 5.3 Cents situated in Sy. Dated this the 2nd day of June, 2010. VARGHESE MATHEW Advocate Commissioner PETITION SCHEDULE PROPERTY District Alapuzha Sub District Alapuzha Taluk Ambalapuzha Village Alapuzha West Sy. No. 499/9/2 Extent 5.3 Cents DESCRIPTION All that part and parcel of land having an extent of 5.3 Cents situated in Sy. No. 499/9/2, Alapuzha west Village, Ambalapuzha Taluk, Alapuzha District and the building owned by the respondent No.2 as per Partition deed 3778/2001 of Alapuzha SRO. BOUNDARIES East Property of Vincent South Vazhy West Property of Babu North Property of Raphel Dated this the 2nd day of June, 2010. VARGHESE MATHEW Advocate Commissioner 7. Ext.P8 dated 12.7.2010 issued by the 5th respondent in the writ petition/the Deputy Tahsildar (Revenue Recovery), Ambalappuzha Taluk to the Secretary and some of the members of the petitioner self help group, reads thus: 8. Writ court, after considering the rival contentions, dismissed the writ petition holding that Kerala State Fishermen Debt Relief Commission has no power to deal with debts availed from institutional creditors. 9. Relevant portion of the judgment reads thus: “6. It is thus evident that the first respondent bank is an institutional creditor within the meaning of the Act. Section 5 of the Act provides for the powers and duties of the Commissioner. 9. Relevant portion of the judgment reads thus: “6. It is thus evident that the first respondent bank is an institutional creditor within the meaning of the Act. Section 5 of the Act provides for the powers and duties of the Commissioner. In so far this case is concerned, section 5 (b), (c) and (d) and sub-section (2) are relevant and therefore, they are extracted below for reference: “(b) to determine, in the case of creditors other than institutional creditors, a fair rate of interest and an appropriate level of debt, as the commission may consider just and reasonable to be payable by the indebted fishermen in the disaster affected area: (c) to undertake conciliation for the settlement of disputes between the indebted fishermen and the creditors other than institutional creditors on the basis of the fair rate of interest and appropriate level of debt determined under clause (b): (d) to adjudicate the disputes between indebted fishermen in the disaster affected area and the creditors, other than institutional creditor and to pass awards which shall be binding on both parties: provide that before passing an award under this clause the creditor shall be given an opportunity of being heard.” “(2) Issue orders keeping in abeyance the repayment of all debts of fishermen in the disaster affected areas to the creditors other than to institutional creditors considering the shortage in the availability of fish, fall in price, loss due to natural calamity etc. for a period of time limit not exceeding the period between six months and one year; Provided that the issuance of orders shall be subject to the awards and directions of Commission under subsection (1).” 7.From a perusal of these provisions, it can be seen that the power of the Commission to determine the fair rate of interest and appropriate level of debt, to undertake conciliation for the settlement of disputes and to adjudicate disputes between the indebted fishermen and the creditors are to the exclusion of institutional creditors. Similarly, power under section 5(2) to issue orders keeping in abeyance the repayment of all the debts of fishermen in disaster affected areas also excludes institutional creditors. In other words, powers and duties of the Commission as provided in the aforesaid sub sections to section 5 specifically exclude debts due to institutional creditors, which include the first respondent bank. Similarly, power under section 5(2) to issue orders keeping in abeyance the repayment of all the debts of fishermen in disaster affected areas also excludes institutional creditors. In other words, powers and duties of the Commission as provided in the aforesaid sub sections to section 5 specifically exclude debts due to institutional creditors, which include the first respondent bank. 8.Counsel for the petitioner relied on section 9, which provides for special provisions in respect of settlement of loans taken by fishermen of disaster affected areas. A reading of this provision shows that although power has been conferred on a member authorised by the Commission, to reschedule the term loans, to provide facilities or to waive interest or penal interest, that can only be through mutual understanding. Similar is the case with section 10 conferring power of rescheduling of loan taken from financial institutions. For the reason that the financial institutions mentioned therein are financial institutions owned or fully controlled by Government, which is the Government of Kerala as per section 2(xiv) of the Act. 9. In other words, from the above provisions of the Act, it can be seen that the Commission has no power to deal with debts of the nature availed of by the petitioner group and therefore, even if an application is pending, as claimed by the petitioners, that cannot be a reason to take refuge under Ext.P4 Government Order or any similar order issued by the Government. Therefore, I do not find any justification in interfering with Exts.P5 or P8. The writ petition is dismissed. Needless to say that this judgment will not stand in the way of the petitioner availing of further remedies that are available.” 10. Being aggrieved by the above, appellants/respondents 3 to 5 in the writ petition [State of Kerala, The Kerala State Fishermen Debt Relief Commission and State Bank of India] have preferred this writ appeal. 11. According to the appellants, writ court on a wrongful appreciation of facts, circumstances and law, erroneously declared that the Kerala State Fishermen Debt Relief Commission has no power to deal with the debts availed from institutional creditors and dismissed the writ petition. 12. The finding of the learned Single Judge will make the Kerala State Fishermen Debt Relief Commission powerless and will have serious consequence in the State. 13. 12. The finding of the learned Single Judge will make the Kerala State Fishermen Debt Relief Commission powerless and will have serious consequence in the State. 13. It is further submitted that the Fishermen Debt Relief Commission Act, 2008 (Kerala) has been enacted with a view to providing urgent relief to the fishermen, in distress due to indebtedness for many years. As the preamble of the Act reveals, liability of fishermen has been increasing due to various reasons such as natural calamities, sea erosion, Tsunami, ruins due to monsoon, diseases etc. 14. As they are entrapped in great indebtedness and unable to repay their loans obtained for years with interest, the necessity to constitute a Commission to recommend appropriate relief measures to such fishermen and for solving their problems through conciliation, negotiation and adjudication was considered necessary. 15. Section 3 of the Fishermen Debt Relief Commission Act, 2008 envisages Constitution of the Commission for recommending relief measures to such fishermen and for solving their problems through conciliation, negotiation and adjudication, and also for matters connected therewith or incidental thereto. 16. It is further contended that a fact that indebtedness of the fishermen is not at all confined or limited to non bank creditors alone. 17. Section 7 of the Fishermen Debt Relief Commission Act, 2008 deals with application for debt relief, which reads thus: “A fisherman claiming any debt relief under this Act, shall file an application before the Commission in such manner and in such form, as may be prescribed.” 18. 17. Section 7 of the Fishermen Debt Relief Commission Act, 2008 deals with application for debt relief, which reads thus: “A fisherman claiming any debt relief under this Act, shall file an application before the Commission in such manner and in such form, as may be prescribed.” 18. Section 9 of the Fishermen Debt Relief Commission Act, 2008 deals with Special provisions in respect of settlement of certain loans taken by a fisherman of disaster affected area, reads thus: “(1) Notwithstanding anything contained in this Act or in any other law or contract or decree or order of any Court or Tribunal, a member authorised by the Commission shall have power, through mutual understanding to,- (a) reschedule short-term loans into medium term loans and medium term loans into long term loans availed of by the fisherman of a disaster affected area from commercial banks or other scheduled banks; or (b) provide necessary facilities for one time settlement of loans falling under the category of non-performing assets, as per the guidelines issued by the Reserve Bank of India; or (c) waive interest penal interest, or both, as per the norms fixed by the Reserve Bank of India, with the concurrence of the Reserve Bank of India and the National Bank for Agriculture and Rural Development. (2) Where any settlement of loan is made under sub-section (1), the fisherman shall be bound to repay such loan with interest to the bank within the period as per the settlement provision.” 19. Section 10 of the Fishermen Debt Relief Commission Act, 2008 deals with Re-scheduling of loans taken by a fisherman from financial institutions, which stipulates thus: “(1) Notwithstanding anything contained in this Act or in any other law or contract or decree or order of any Court or Tribunal, the Commission may reschedule the recovery of loans availed by the fisherman of a disaster affected area due on or before the date of declaration as disaster affected area under Section 6 from any financial institution owned or fully controlled by the Government. (2) Where the rescheduling of the loan is made under subsection (1), the fisherman shall be bound to repay such loan with interest to the financial institution concerned within the period allowed by Commission: Provided that the Commission may, on application by the fisherman, exempt repayment for such rescheduled period, by order, for reasons to be recorded. (2) Where the rescheduling of the loan is made under subsection (1), the fisherman shall be bound to repay such loan with interest to the financial institution concerned within the period allowed by Commission: Provided that the Commission may, on application by the fisherman, exempt repayment for such rescheduled period, by order, for reasons to be recorded. Provided further that the fisherman shall be bound to repay the same on such later dates as may be fixed by the Commission.” 20. Section 12 of the Fishermen Debt Relief Commission Act, 2008 deals with payment of debt in instalments, which reads thus: “(1) Notwithstanding anything contained in any law or contract or in any decree or order of any court or Tribunal, a fisherman of a disaster affected area may discharge his debts in suitable instalments together with fair rate of interest as recommended by the commission on the principal amount outstanding at the time of each payment in the manner as may be directed by the Commission and on payment of the same in the manner directed by the Commission, the whole debt shall be deemed to be discharged. (2) Where any instalment of a debt is not paid on the due date as directed by the Commission, the creditor shall be entitled to recover the same in the manner as may be determined by the Commission: Provided that before taking a decision by the commission under this section, the fisherman shall be given an opportunity of being heard.” 21. Inviting to the above statutory provisions, Mr.K.P.Harish, learned Senior Government Pleader submitted that the Commission has power to recommend to the Government to take over the whole or part of the debt and exonerate the fishermen, from the consequences of the debt. 22. He has also invited the attention of this court to Section 5 of the Act, which deals with the powers and duties of the Commission, which is reproduced hereunder: (1) the Commission shall have all such powers as are necessary for achieving the objects of this Act, and in particular, - (a) to recommend to the Government on application or otherwise, after such enquiry as the Commission may deem fit, and on the basis of the general criteria as may be prescribed by the Government to declare any districts or district or fishermen zone forming part thereof as disaster affected area for a proposed period. (b) to determine, in the case of creditors other than institutional creditors, a fair rate of interest and an appropriate level of debt, as it may consider just and reasonable to be payable by the indebted fisherman in the distress affected area; (c) to undertake conciliation for the settlement of disputes between the indebted fishermen and the creditors other than institutional creditors, on the basis of the fair rate of interest and appropriate level of debt determined under clause (b); (d) to adjudicate the disputes between indebted fishermen in the disaster affected area and the creditors, other than institutional creditors, and to pass awards which shall be binding on both parties; Provided that before passing an award as per this clause the creditor shall be given an opportunity of being heard; (e) to enter into negotiations with the creditors, for loan waiver, the interest rate relief, the loan rescheduling or loan moratorium to the fishermen in the disaster affected areas; (f) to recommend the Government regarding the extent and the manner in which the debt relief to be granted to the fishermen; (g) to recommend to the Government to take over the whole or part of the debt and exonerate the fishermen, from the consequences of the debt; (h) to recommend to the Government to do such acts as may be necessary to ensure that future credit requirements of the fishermen are met through such agencies, as may be prescribed; (I) to make periodical reports to the Government generally on any matter pertaining to fishermen indebtedness; and (j) to perform such other functions and exercise such other powers, as may be prescribed. (2) issue orders keeping in abeyance with the repayment of all debts of fishermen in the distress affected areas to the creditors other than institutional creditors considering the shortage in the availability of fish, fall in price, loss due to natural calamity etc. for a period of time limit not exceeding the period between six months and one year. Provided that the issuance of orders shall be subject to the awards and directions of Commission under sub-section (1). (3) Notwithstanding anything contained in any other provisions of this Act, the limit of debt relief granted to a fisherman by way of waiver in the principal, interest and penal interest, shall not exceed the limit as may be fixed by the Government from time to time. (3) Notwithstanding anything contained in any other provisions of this Act, the limit of debt relief granted to a fisherman by way of waiver in the principal, interest and penal interest, shall not exceed the limit as may be fixed by the Government from time to time. (4) An award passed by the Commission under clause (d) of sub-section (1) shall be final and shall not be called in question in any court. (5) The awards of the Commission as per clause (d) of subsection (1) may be executed as a decree of Civil Court under the provisions of Code of Civil Procedure, 1908 (Central Act 5 of 1908). (6) The Commission shall, for the purpose of exercising the powers conferred by or under this Act, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavit: (d) issuing commission for the examination of witnesses or for local investigation; (e) inspecting any property or thing concerning with any decision has to be taken; (f) requisitioning of any public record or copy thereof from any court, authority or office; and (g) any other matter which may be prescribed. 23. Per contra, Mr.Harish Gopinath, learned counsel appearing for the bank submitted that the issue involved in this case is with respect to the recovery steps initiated by the bank, as per Exts.P5 and P8 notices, which are beyond the purview of the Act of 2008 and the moratorium declared by the Government of Kerala. 24. He further submitted that even if it is assumed that the Act of 2008 is applicable to the writ petitioner, the said Act as well as the moratorium declared by the State Government, are prevailed over by Section 35 of the SARFAESI Act, 2002, a Central Act. 25. He also submitted that an inboard drive is a marine engine enclosed inside the boat. Act of 2008 has been passed for the benefit of traditional fishermen and not those fishermen using mechanised boats. 25. He also submitted that an inboard drive is a marine engine enclosed inside the boat. Act of 2008 has been passed for the benefit of traditional fishermen and not those fishermen using mechanised boats. According to the learned counsel, writ petitioner is not a traditional fishermen and is operating under a licence issued under the Act of 1980 is ineligible to the benefits of the Act 2008. 26. We have heard learned counsel for the parties and perused the materials available on record. 27. Considering the entire facts and circumstances of the case and after going through the statutory provisions relating to Fishermen Debt Relief Commission Act, 2008 (Kerala), extracted supra and considered, we are of the view that the Commission has the power to recommend to the Government to take over the whole or part of the debt and to exonerate the fishermen from the consequences of a debt. 28. We make it clear that as per the provisions of the Fishermen Debt Relief Commission Act, 2008 (Kerala), Commission has all the powers necessary for achieving the objects of the Act i.e., to provide for an urgent relief to the fishermen who are in distress due to indebtedness, by constituting a Commission for recommending relief measures to such fishermen and for solving their problems through conciliation, negotiation and adjudication and for matters connected therewith or incidental thereto. Hence, impugned judgment dated 5th March, 2013 in W.P.(C)No.30691/2010 is set aside, to that extent. Writ appeal is allowed.